Chp 12 PDF - McCook Public Schools

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Arrests must be based on
probable cause.
he criminal justice process includes everything that happens
to a person from arrest through prosecution and conviction to
release from the control of the state. The vast majority of crimes that
occur are investigated and prosecuted under state laws. There are,
however, many federal crimes that are handled in the federal criminal
justice system. The federal and state systems are similar in many ways,
but each state has certain features that make it unique.
Typically the process moves through certain stages, and the person
arrested might gain his or her freedom at any stage. Some are freed
almost immediately at the police station, and some regain their freedom only after serving time in a correctional institution. At various
points in the investigation, trial, and sentencing process, the prosecutor may drop the case for lack of evidence, or the judge may declare a
mistrial if the jury is unable to reach a verdict.
This chapter deals with the investigation phase of the process,
including how the U.S. Constitution limits what police can do. The
next three chapters cover proceedings before trial, the trial itself,
and sentencing and corrections. The juvenile justice process is
discussed in Chapter 16. The final chapter of this unit examines some of the legal issues related to terrorism.
The right of the people to be secure in their
persons, houses, papers, and
effects, against unreasonable
searches and seizures, shall not
be violated, and no Warrants shall
issue, but upon probable cause,
supported by Oath or affirmation,
and particularly describing the
place to be searched, and the
persons or things to be seized.
— Fourth Amendment to
the U.S. Constitution
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Arrest
An arrest takes place when a person suspected of a crime
is taken into custody. An arrest is considered a seizure under
the Fourth Amendment, which requires that seizures be
reasonable. A person can be taken into custody by a police
officer in one of two ways: with an arrest warrant issued by a
judge or without a warrant if there is probable cause. Someone
who is taken into custody under circumstances in which a reasonable person would not feel free to leave is considered to be
under arrest, whether or not he or she is told that.
An arrest warrant is a court order commanding that the person
named in it be taken into custody. A warrant is obtained by filing a
complaint before a judge or magistrate. The person filing the complaint is generally a police officer but may be a victim or a witness. The
person making the complaint must also describe and swear to the facts
and circumstances of the alleged crime. If, on the basis of the information provided, the judge finds probable cause to believe that an offense
has been committed and that the accused committed it, a warrant will
be issued. On many occasions, police do not have time to get a warrant. In certain felony cases and in misdemeanor cases, they may make
a warrantless arrest in public based on probable cause.
Probable cause to arrest means having a reasonable belief that a
specific person has committed a crime. This reasonable belief may be
based on much less evidence than is necessary to prove a person guilty
at trial. For example, suppose the police receive a radio report of a bank
robbery. An officer sees a man matching the description of the bank
robber waving a gun and running away from the bank. The officer
would have probable cause to stop and arrest the man, but that evidence alone would likely not be enough to convict him of the crime.
There is no exact formula for determining probable cause. When arresting without a warrant, police must use their own judgment as to what is
reasonable under the circumstances of each case. In all cases, probable
cause requires more than mere suspicion or a hunch. Some facts must be
present that indicate that the person arrested has committed a crime.
In recent years, the courts have allowed law enforcement officials
to use a drug courier profile to help establish probable cause for
arrest. Drug courier profiles are often based on commonly held
notions concerning the typical age, race, personal appearance, behavior, and mannerisms of drug couriers. Police often use them simply to
provide a basis to stop and question a person.
Criminal Law and Juvenile Justice
Some argue that it is unfair to use such factors in determining
probable cause. These critics argue that individualized suspicion—as
opposed to the generalized characteristics of drug couriers—should
be required to establish probable cause. Others believe that drug
cases present unique law enforcement problems and that the use of
the profiles is necessary in order to stop drug trafficking.
Police may establish probable cause based on information provided
by citizens in the community. Information and statements from
victims or witnesses can be used to obtain an arrest warrant. Police
also use tips from informants to establish probable cause if they can
convince a judge that the information they have obtained is reliable.
Figure 12.1 Sequence of Events in the Criminal Justice Process
• Arraignment
• Case preparation
• Pretrial motions
• Crime occurs
• Citizen calls police
• Police officer dispatched
• Preliminary investigation
• Crime report prepared
No
arrest
No charges
• Jury selection
and trial
• Bench trial
Investigation by
detective division
Dismissal/
acquittal
Guilty
plea
Conviction
Reversal
or retry
Arrest
Appeals
• Presentence investigation
• Sentencing
Affirmance
Booking
Diversion
Incarceration
• Community
Charges brought
corrections
• Jail
• Prison
Not bound
over, no
indictment
• Preliminary proceedings
(including probable cause)
• Bail
• Indictment/information
• Appointment of counsel
Parole
• Supervised
probation
• Home
confinement
Exit
Other Options
• Fine, restitution
• Suspended
sentence
• Conditional
treatment (for
example, drug
treatment)
• Unsupervised
probation
Note: Sentencing may include several of the options (for example,
prison and a fine). Parole is being eliminated in many places.
The criminal justice process includes everything that happens from the arrest through prosecution,
conviction, and eventual release from control by the state. Additional information is provided in
Chapters 13–15. ANALYZE THE DATA What happens after charges are brought against the individual?
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Criminal Justice Process: The Investigation
135
In determining the reliability of an informant’s tip, a judge will consider a number of
circumstances. These include whether the
informant has provided accurate statements
in the past, how the informant obtained the
information, and whether the police can
corroborate, or confirm, the informant’s
tip with information from other sources.
Problem 12.1
An officer pats down a suspect’s
outer clothing. When can an
officer stop and frisk a person?
The police receive a tip that a drug pusher
named Richie will be flying from New York City to
Washington, D.C., sometime on the morning of
September 8. The informant describes Richie as
a tall man with reddish hair and a beard. He also
tells police that Richie has a habit of walking fast
and that he will be carrying illegal drugs in a
brown leather bag. The police have received reliable information from this informant in the past.
On the morning of September 8, the police watch
all passengers arriving from New York City. When
they see a man who fits the description—carrying
a brown leather bag and walking fast—they arrest
him. A search of the bag reveals a large quantity
of cocaine.
a. Do you think the police had probable cause to arrest Richie? Explain.
b. Should the police have obtained a warrant before arresting Richie?
Why or why not?
c. Assume the police have not received a specific tip but they know that
crack cocaine is being brought regularly on trains from one city to
another by teenagers hired by older drug dealers. They see a 16-year-old
African American male arriving by train. He is alone and is carrying a
small canvas bag. Should the police be able to stop and question him?
Under what circumstances should they be able to search or arrest him?
A police officer does not need probable cause to stop and question an
individual on the street, but the officer must have reasonable suspicion
to believe that the individual is involved in criminal activity. Reasonable
suspicion is based on even less evidence than probable cause, but it
must be more than a mere hunch. If the officer has reasonable suspicion that the person is armed and dangerous, he or she may do a
limited pat-down of the person’s outer clothing—a stop and frisk
—to remove any weapons the person may be carrying.
Even if a police officer does not have probable cause or reasonable
suspicion, the officer may go up to any individual and ask to speak to
him or her. The person may decline and continue his or her activity,
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Criminal Law and Juvenile Justice
and the officer is not legally permitted to take the person’s silence or
departure into account in determining probable cause or reasonable
suspicion. In all states, however, if the person runs from the police
upon being asked for identification, that flight may give the officer
reasonable suspicion to stop the person again, at which point the
person is not free to walk away. This is especially true with stops in
high crime areas.
The most common kind of arrest occurs when people do not realize they are being arrested at all. When a police officer stops a person
driving a car for violating traffic laws, the driver is technically under
arrest because the driver is not free to leave but must stay until the
officer releases him or her. The detention in this common situation is
usually brief, lasting only as long as it takes the officer to check identification and registration, and typically ends when a citation, or ticket,
is issued for the violation. The U.S. Supreme Court has ruled that
police can order all passengers out of a car when making a lawful
traffic stop.
The Unlucky Couple
Problem 12.2
a. If you were Officer Ramos, what would you
do in this situation? If you were Lonnie,
what would you do?
A fter an evening at the movies, Lonnie
Howard and his girlfriend, Melissa, decide
to park in the empty lot behind Briarwood
Elementary School. They begin talking and
start drinking the beer they brought with
them. After several beers, the couple is startled by the sound of breaking glass and voices
from the rear of the school.
Unnoticed in their darkened car, Lonnie
and Melissa observe two men loading office
furniture and electronics equipment from
the school into the back of a van. Quickly
concluding that the men must be burglars,
Lonnie decides he should leave the parking
lot. He revs up his engine and roars out of the
parking lot onto Main Street.
Meanwhile, unknown to Lonnie and Melissa,
a silent security alarm has also alerted the
local police to the break-in at the school.
Responding to the alarm, Officer Vicki Ramos
heads for the school. She turns onto Main
Street just in time to see one vehicle—Lonnie’s
car—speeding away from the school.
CHAPTER
b. If Officer Ramos chases Lonnie, will she have
probable cause to stop and arrest him?
c. How do you think Officer Ramos would act
after stopping Lonnie? How do you think
Lonnie and Melissa would act?
d. Role-play this situation. As Officer Ramos,
decide what you would say and how you
would act toward the occupants of the car.
As Lonnie and Melissa, decide what you
would say and how you would act toward
the police officer.
e. What could Lonnie and Melissa do if they
were mistakenly arrested for the burglary?
What could they do if they were abused or
mistreated by Officer Ramos?
f. Assume Lonnie takes a baseball bat from the
back of the car and begins to wave it after
being stopped by Officer Ramos. Would it be
legal for Officer Ramos to use deadly force?
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Criminal Justice Process: The Investigation
137
What To Do If
You Are Arrested
• Do not struggle with the police. Be polite.
Avoid fighting or swearing, even if you
think the police have made a mistake.
Resisting arrest and assaulting a police
officer are usually separate crimes that
you can be charged with even if you have
done nothing else wrong. If you believe
you have been assaulted by the police,
be sure to write down the officer’s name
and badge number. If possible, also write
down the names and phone numbers of
any witnesses.
Give your name, address, and phone
number to the police. Otherwise, keep
quiet until you have spoken to a lawyer.
Do not discuss your case with anyone at
this point, and don’t sign any statements
about your case.
You may be searched, photographed,
and fingerprinted. Notice carefully what
is done but do not resist. If any personal
property is taken from you, ask for a
written receipt.
As soon as possible after you get to the
police station, call a trusted relative or
friend. Tell this person where you are,
what you have been charged with, and
what your bail or bond is. (See Chapter 13
for information about bail.)
Please note that this information
applies to adults who are arrested. When
juveniles are taken into custody, a parent
or guardian must be notified and there is
no right to bail. There may also be other
differences between juvenile and adult
arrest procedures and the steps you should
take. (See Chapter 16 for information
about the juvenile justice system.)
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Cooperating with the police
• When you are arrested for a minor
offense, you may, in some places, be
released without having to put up any
money. This is called an unsecured bond
or citation release. If you do not qualify for
a citation release, you may have to put up
some money before release. This is called
posting a cash bond or collateral. Ask for
a receipt for the money.
• When you are arrested for a serious
misdemeanor or felony, you will not be
released immediately. Ask the friend or
relative you have called to get a lawyer for
you. If you cannot afford a lawyer, one will
be appointed by the judge when you are
first brought to court.
Before you leave the police station, be
sure to find out when you are due in court.
Never be late or miss a court appearance. If
you do not show up in court at the
assigned time, a warrant may be issued
for your rearrest.
• Do not talk about your case with anyone
except your lawyer. Be honest with your
lawyer, or he or she will have trouble helping you. Ask that your lawyer be present
at all lineups and interrogation sessions.
Most criminal defense lawyers recommend
that you not talk to police about the crime
until you speak with a lawyer.
Television crime shows suggest that much of a police officer’s work
involves deadly force. In fact only a small percentage of interaction
between the police and the public involves the use of force. When
force is used, it usually does not involve police use of a weapon or
other type of deadly force. A police officer may use as much force as is
reasonably necessary to make an arrest. However, most police departments limit the use of deadly force to incidents involving dangerous or
threatening suspects. The U.S. Supreme Court has ruled that deadly
force “may not be used unless it is necessary to prevent escape, and the
officer has probable cause to believe the suspect poses a significant
threat of death or serious physical harm to the officer or others.”
If a police officer uses too much force or makes an unlawful arrest,
the accused may bring a civil action seeking monetary damages for a
violation of the federal Civil Rights Act. The government could also file
a criminal action against the police. In addition, many local governments have processes for handling citizen complaints about police
misconduct. Note, however, that a police officer is never liable for
false arrest simply because the person arrested did not commit the
crime. Rather, it must be shown that the officer acted maliciously or
had no reasonable grounds for suspicion of guilt. Also, if an arrest is
later ruled unlawful, the evidence obtained as a result of the arrest
may not be used against the accused.
The Dangerous
Car Chase
ramming him from behind. He sought and
received permission from his supervisor, who
said “go ahead and take him out.”
Scott pushed his bumper into the rear of
Harris’s vehicle, which ran off the road, overturned, and crashed. Harris was badly injured in
the crash, which left him a quadriplegic. He sued
Scott for violating his Fourth Amendment rights,
saying that Scott used excessive force to seize him.
I
n March 2001, Victor Harris, who was 19
years old, was speeding at 73 miles per hour
on a stretch of road where the speed limit was
55 miles per hour. A police officer activated
his blue flashing lights to signal Harris to pull
over, but Harris sped away. The officer chased
Harris and radioed his dispatch for assistance.
Deputy Timothy Scott joined the pursuit
along with other officers, and most of the
chase occurred on a two-lane highway. At
one point, Harris pulled into a shoppingcenter parking lot, where he collided with one
of the patrol cars and then continued fleeing
down the highway. Deputy Scott, now the
lead pursuit vehicle, decided to stop Harris by
CHAPTER
Problem 12.3
a. What arguments can Harris make that his
rights were violated?
b. What arguments can Officer Scott make that
his use of force did not violate Harris’ rights?
c. How should this case be decided? Explain.
d. Draft a policy that the police could use to
determine when a chase is justified.
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Criminal Justice Process: The Investigation
139
Community Racial Tensions and
Police Use of Force
Allegations of excessive
use of force by police can
lead to community conflict.
The potential for conflict is
particularly serious when
poor police-community race
relations exist.
The Community Relations
Service (CRS), an agency
within the U.S. Department of
Justice, is the federal government’s peacemaker for community conflict arising from
racial differences. The CRS
was created by Congress when
it passed the Civil Rights Act of
1964. This agency provides a
variety of services to community members and government
officials to help them avoid
and resolve race-based conflicts. Services include strategies for building bridges
between minority groups and
law enforcement, as well as
providing places for candid
discussions of race relations.
Current information about
the CRS is available online at
www.usdoj.gov/crs/.
Search and Seizure
Americans have always valued their privacy. They expect to be left
alone, to be free from unwarranted snooping or spying, and to be
secure in their homes. While there is no explicit right to privacy in the
U.S. Constitution, the Fourth Amendment sets out the right to be free
from “unreasonable searches and seizures” and establishes conditions
under which search warrants may be issued. Like others in the Bill of
Rights, this right limits the power of government, not the actions of
private citizens. If an individual violates your privacy, however, you
may be able to make a claim under tort law, discussed in Unit 3.
Balanced against the individual’s reasonable expectation of privacy
is the government’s need to gather information. In the case of the
police, this is the need to collect evidence against criminals and to
protect society against crime.
The Fourth Amendment does not give citizens an absolute right to
privacy, and it does not prohibit all searches—only those that are
unreasonable. In reviewing whether the police acted reasonably in
conducting a search, courts carefully consider the facts and circumstances of each case, sometimes called the “totality of the circumstances.” Traditionally, courts have found searches and seizures of
private homes to be reasonable only when authorized by a valid
warrant. In practice today, warrantless searches are very common
(except for searches of homes) as long as they are reasonable.
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The courts have recognized certain
situations in which warrantless
searches are considered to be reasonable and allowed. These are
discussed on pages 144–146.
The U.S. Supreme Court has
sometimes used the concept of
“reasonable expectation of privacy”
to help determine whether a search
was reasonable or unreasonable.
Courts ask: did the person in a particular situation have an expectation
of privacy, and does society consider
that expectation in this instance to
be reasonable? In one such case,
the Supreme Court found that a
person did not have a reasonable
expectation of privacy in garbage left in a plastic bag for pickup on the
curb in front of his house. The police were allowed to search this
person’s garbage without first obtaining a warrant.
Although the language of the Fourth Amendment is relatively simple, search and seizure law is complex. There are many exceptions to
the basic rules. Once an individual is arrested, it may be up to the
courts to decide whether any evidence found in a search was legally
obtained. If a court finds that the search was unreasonable, then evidence found in the search cannot be used at the trial against the
defendant. This principle—the exclusionary rule—does not mean
that the defendant cannot be tried or convicted, but it does mean that
evidence seized in an unlawful search cannot be used at trial.
Police officers search a house
to collect evidence against
criminals. What is the
exclusionary rule?
Problem 12.4
Examine the following situations. Decide whether the search violates the
Fourth Amendment. Explain your decisions.
a. The police see Dell standing at a bus stop in an area known for drug
dealing. They stop and search him, finding drugs in his pocket.
b. After Brandon checks out of a hotel, the police ask the hotel manager
to turn over the contents of the wastebasket, where they find notes
planning a murder.
c. Jill’s ex-boyfriend breaks into her apartment and looks through her desk
for love letters. Instead he finds drugs, which he gives to the police.
d. Pam is seen shoplifting in a store. Police chase Pam into her apartment
building and arrest her outside the closed door of her apartment. A
search of the apartment reveals a large quantity of stolen goods.
e. Sandi is suspected of receiving stolen goods. The police go to her house
and ask Claire, her roommate, if they can search the house. Claire gives
them permission, and they find stolen items in Sandi’s dresser.
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Policing the Police
E
ver since the development of the modern
police force in London by Sir Robert Peel
in 1829, determining the best way to police
the police—to investigate and hold them
accountable for following laws as they
enforce them—has been an ongoing challenge.
In most municipalities, city government is
headed by an elected mayor or a city manager hired by an elected city council. In
either case, the mayor or city manager has
the power to hire and fire the police chief.
If voters are dissatisfied with the work of the
police force, this will reflect badly on the
mayor or the city manager, who will have a
strong incentive to either improve the work
of the force or hire a new chief who will do a
better job.
Police departments handle complaints
from citizens through an internal affairs unit.
In small departments, one officer handles
citizen complaints in addition to other duties.
In larger departments, citizen complaints are
handled by a specialized unit, often staffed
by supervisors.
A number of jurisdictions have taken additional steps that involve persons independent
of the police department in the review of
police conduct. Among the most common
structures are the following:
Civilian Complaint Review Board Model:
The civilian complaint review board is usually
made up of citizen volunteers who review
findings that the police department’s internal
affairs unit proposes in response to complaints from citizens. In some jurisdictions,
the complaint review board relies on the
police investigation to make a determination.
In others, the review board has staff members who investigate the complaints. This
process is more open to the public and can
help build trust in the community, but the
volunteers on the board may know little
about police work.
Police Commission Model: The police
commission has independent authority over
the operation of the police department.
Commission members are usually appointed
by elected officials such as the mayor and/or
city council. In some cases the commission
employs a staff of investigators to review
complaints. The commission can recommend
disciplinary action to the chief of police, when
appropriate, or independently impose discipline when necessary.
Office of Professional Accountability
Model: An outside expert is brought in as the
head of the police department office of internal affairs. This expert is appointed by the
mayor and confirmed by the city council. This
model blends inside expertise with outside
accountability.
Problem 12.5
a. Critics of investigations by a police department’s internal affairs unit talk about a
“blue wall of silence” blocking a thorough
investigation. What do you think this
phrase means?
b. What are the strengths and weaknesses
of each model described above? Which
approach would you recommend for your
community? Explain your reasons.
Searches With a Warrant
A search warrant is a court order. It is obtained from a judge who
is convinced that there is a bona fide (genuine) need to search a person or place. Before a judge issues a warrant, someone, usually a police
officer, must file an affidavit—a sworn statement of facts and circumstances—that provides the probable cause to believe that a search is
justified. If a judge issues a search warrant, the warrant must specifically describe the person or place to be searched and the particular
things to be seized.
Once the search warrant is issued by the judge, the search must be
conducted within a certain number of days specified in the warrant.
Also, in many states the search must be conducted only in the daytime, unless the warrant expressly states otherwise. Finally, a search
warrant does not usually authorize a general search of everything in
the specified place. For example, if the police have a warrant to search
a house for stolen 20-inch televisions, it would be unreasonable for
the police to look in desk drawers, envelopes, or other small places
where such televisions could not possibly be hidden. However, the
police can seize evidence related to the case and any other illegal
items that are in plain view when they are properly searching the
house for the televisions.
When the police have a warrant to search a house, the Fourth
Amendment’s reasonableness requirement usually means that they
must knock, announce their purpose and authority (that is, that they
are police officers), and request admission. The police generally
cannot enter a house forcibly—even with a search warrant—unless
they have met the “knock and announce” test described above.
Search warrants must state the
specific place to be searched
and the particular items to be
seized. What other requirements
must police follow with a search
warrant?
143
However, the U.S. Supreme Court has allowed for “no-knock” entries
when circumstances present a threat to the officers or where evidence
would likely be destroyed if advance notice were given (such as in
drug cases). In 2006 the Supreme Court allowed the use at trial of
evidence obtained after police entered a house without following
“knock and announce” rules.
Searches Without a Warrant
By law, searches of private homes usually require a warrant. However,
the courts have recognized some situations in which searches are
reasonable and may be legally conducted without a warrant.
• Search incident to a lawful arrest. A search that is part of, or
incident to, a lawful arrest is considered reasonable. This allows
the police to search a lawfully arrested person and the area immediately around that person for hidden weapons or for evidence
that might be destroyed. This is called a “grab area” search. If the
arrest occurs next to or in the accused’s car, police may also
search the passenger compartment of the car, but usually not the
trunk. The Supreme Court has also allowed a “protective sweep”
through an arrested person’s home in search of other potentially
armed persons.
Transportation Security
Administration agents are
authorized to search people
boarding a plane without a
warrant. Is it reasonable to
search all airline passengers using
a metal detector even when there
is no probable cause?
• Stop and frisk. A police officer who reasonably thinks a person is
behaving suspiciously and is likely to be armed may stop and frisk
the suspect for weapons. This protects the safety of officers and
bystanders who might be injured by a person carrying a concealed
weapon. The Supreme Court has also said that seizing an illegal
substance (such as drugs) during a valid frisk is reasonable if the
officer’s sense of touch makes it immediately clear that the object
felt is an illegal one. This is known as the “plain feel” exception.
• Consent. When a person voluntarily agrees, the police may conduct a search without a warrant and
without probable cause. Normally,
a person may grant permission to
search only his or her own belongings or property. In some situations,
however, one person may legally
allow the police to conduct a search
of another person’s property. For
example, a parent may usually allow
officers to search a child’s property.
In 2006 the Court said that one
spouse could not give consent to a
warrantless search of her home
when the other spouse was present
and objected to the search.
Fingers McGee
Problem 12.6
a. Role-play this encounter. As the officers,
decide what questions to ask McGee. As
McGee, decide what to tell the officers.
b. Assume McGee tells the police what he
knows. What should the police do then?
c. Should the police get a search warrant
before going to Johnson’s house? If they go
without a warrant, do they have probable
cause to arrest him? Why or why not?
d. If the police decide to enter Johnson’s
house, should they knock and announce
themselves or break in unannounced?
e. If the police enter the house, can they arrest
Johnson? Where can they search, and what,
if anything, can be seized? Role-play the
scene at the house.
W
hile on duty, Officer Yomoto and Officer
Jones receive a radio report of a robbery at
the Dixie Liquor Store. The report indicates
only that the suspect is male, about six feet
tall, and wearing old clothes. Meanwhile,
Fingers McGee is finishing up some shopping
at a nearby store and has just seen the owner
of the Dixie Liquor Store chasing a man.
The man was carrying a paper sack and what
appeared to be a knife as he ran down the
street. McGee thinks the man looks like Mark
Johnson, a drug addict, and he thinks the man
was running toward Johnson’s house located at
22 Elm Street. Officers Yomoto and Jones
encounter Fingers McGee on a street corner and
begin to ask him questions.
• Border and airport searches. Customs agents are authorized to
search without warrants and without probable cause. They may
examine the baggage, vehicles, purses, wallets, and similar belongings of people entering the country. Body searches or searches
conducted away from the border by customs agents are allowed
only where there is reasonable suspicion of criminal activity. In
view of the danger of terrorist activities, security personnel and
airlines are permitted to search all carry-on luggage and to search
all passengers by means of fixed and hand-held metal detectors.
Since the September 11, 2001, terrorist attacks, these searches
can take place several times from the moment a passenger enters
the airport until he or she boards the flight. Part of the rationale
for border and airport searches is that people have a reduced
expectation of privacy in these two settings and accept a certain
amount of intrusion by government into their privacy.
• Vehicle searches. A police officer who has probable cause to
believe that a vehicle contains contraband may conduct a search
of the entire vehicle, as well as any containers in the vehicle that
might contain the contraband, without a warrant. This does not
mean that the police have a right to stop and search vehicles
randomly on the streets. The right to stop and search must be
based on probable cause.
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• Plain view. If an object connected with a crime is in plain view
and can be seen from a place where an officer has a right to be,
it can be seized without a warrant. For example, if an officer
legally stops a car for a traffic violation and sees a gun lying on
the car seat next to the driver, he or she may seize it without a
warrant. Likewise, if an officer has gained legal entrance into a
suspect’s house and sees drug paraphernalia on a coffee table,
the officer does not need a warrant to seize the contraband, or
illegal items.
• Hot pursuit. Police officers in hot pursuit of a suspect are not
required to obtain a search warrant before entering a building
that they have seen the suspect enter. It is also lawful for the
police to seize evidence found in plain view during hot pursuit of
a suspected felon.
Although the Fourth
Amendment protects students
at school, the Supreme Court
has given school administrators
broader power than the police
to search students and their
possessions. How has the
Supreme Court helped schools
address the issue of drugs?
• Emergency situations. In certain types of emergency situations,
the police are not required to get a search warrant. These situations include searching a building after a telephoned bomb threat,
entering a house after smelling smoke or hearing screams, and
other situations in which the police do not have time to obtain a
warrant from a judge. The U.S. Supreme Court has also allowed
warrantless entries of a person’s home where the police have
probable cause to believe that failure to enter immediately without
a warrant will result in destruction of evidence, escape of the suspect, or harm to the police or another individual inside or outside
the building. This exception has been limited by the Supreme
Court to serious crimes.
Public School Searches
As you have learned, the Fourth
Amendment does not protect citizens against
all government searches and seizures, only
unreasonable ones. In its consideration of the
extent to which students at public schools
enjoy Fourth Amendment rights while they
are at school, the U.S. Supreme Court has
granted school authorities broad discretion
to search students and their possessions in
several situations.
The touchstone of the Supreme Court’s
analysis under the Fourth Amendment in
criminal searches is the reasonableness,
considering all the circumstances, of the
particular government invasion of an individual’s personal security. In public school
cases, however, the main concern is whether
a search is reasonable in the context of the
school’s legitimate interests.
146
UNIT
2
Criminal Law and Juvenile Justice
Student Drug Testing
T
ecumseh High School offers a variety
of extracurricular activities for its students.
These activities include choir, band, color
guard, Future Farmers of America (FFA),
Future Homemakers of America (FHA),
and the academic team, as well as athletics
and the cheerleading squad. The majority of
the school’s 500 students participate in one
or more of these activities.
At the start of the 1998 school year, the
school district adopted the Student Activities
Drug Testing Policy. While the school acknowledged only a minimal problem with drugs,
they adopted this policy to prevent a bigger
problem from developing. The policy required
drug testing of all students who participated
in any school-sanctioned extracurricular
activity. Specifically, in order to participate in
an activity, each student had to sign a written
consent agreeing to be tested for drug use on
several occasions: prior to participating in
the activity, randomly during the year while
participating in the activity, and at any time
while participating in the activity upon
reasonable suspicion.
According to the policy, students to be
tested at random are called out of class in
groups of two or three. The students are
directed to a restroom, where a faculty member serves as a monitor. The monitor waits
outside the closed restroom stall for the
student to produce the urine sample. The
monitor pours the contents of the vial into
two bottles. Together the faculty monitor and
the student seal the bottles. The student signs
a form, which the monitor places with the
filled bottles into a mailing pouch in the presence of the student. The bottles are then sent
to be tested at a designated laboratory.
Random drug testing was conducted in this
manner on approximately eight occasions
during the 1998 and 1999 school years.
There are no academic penalties for refusing to take the test or for a negative result,
and results of the tests are not shared with
law enforcement authorities. Students who
refuse to submit to the policy simply cannot
participate in the extracurricular activity. In
two school years, a total of 484 students were
tested as part of this policy. Four students
tested positive.
Two students, neither of them athletes,
challenged this policy in federal court as a violation of their right to privacy. The trial court
sided with the school, but the federal court of
appeals reversed the decision. The school
board has appealed to the U.S. Supreme
Court, which has agreed to hear the case.
Several years earlier, the U.S. Supreme
Court upheld the policy of an Oregon high
school to conduct random, suspicionless
searches of student athletes at a high school
with a serious drug problem. In that case,
school officials had determined that the
student athletes were among the leaders of
the “drug culture” at the school.
Problem 12.7
a. How is the Tecumseh case like the Oregon
case? How is it different? How is this case
similar to and different from the New Jersey
v. TLO case discussed on page 148?
b. What are the most convincing arguments
challenging the policy for the students?
c. What are the most convincing arguments in
justifying the policy for the school?
d. How should this case be decided? Explain.
e. Assume that the case is decided in favor of
the school. Will this mean that schools can
test all students? Faculty and staff? Should
schools be able to test everyone for drugs?
Explain your reasons.
Visit the Landmark Supreme
Court Cases Web site at
landmarkcases.org for
information and activities
about New Jersey v. TLO.
In the 1985 case of New Jersey v. TLO, an assistant principal
suspected a student of violating the public high school’s rule against
smoking. The principal searched the student’s purse and found
evidence of marijuana use. Although the U.S. Supreme Court recognized that a student does have a reasonable expectation of privacy
while at school, it nevertheless upheld the search by the principal.
Instead of requiring that the school have probable cause to suspect
a student of criminal activity, as in a traditional criminal search, the
school authority only needs to have reasonable suspicion that a
search will turn up evidence that the student is violating either school
rules or the law.
Because drug use is a serious issue in schools today throughout the
United States, courts have given schools great discretion in devising
ways to combat the problem. For example, the courts allow schools to
search student lockers on the theory that lockers belong to the school
and that students do not have a reasonable expectation of privacy in
property owned by the school. Most courts have also allowed drugsniffing dogs and their handlers to enter schools to search for drugs.
However, the courts have usually been reluctant to allow strip searches
of students suspected of drug use, finding such searches to be
unreasonable.
Suspicionless Searches
Searches and seizures are usually considered unreasonable if
there is no individualized suspicion of wrongdoing. For example, the
police could not search all the people gathered at a street corner if
they suspected that only one of them possessed evidence of a crime.
They could search only the person upon whom their individual
suspicion is focused so that the privacy rights of the others on the
corner are protected.
The U.S. Supreme Court has recognized some limited circumstances in which this requirement of individualized suspicion need
not be met. For example, the Court has upheld suspicionless searches
conducted in the context of a program designed to meet special needs
beyond the goals of routine law enforcement. These special circumstances include fixed-point searches at or near borders to detect illegal immigrants, highway sobriety checkpoints, and mandatory drug
and alcohol tests for railroad employees who have been involved in
accidents. The Court found these searches to be reasonable and in
support of a special need beyond ordinary law enforcement. These
searches continue to be controversial because they seem to depart
from the Fourth Amendment’s traditional requirement that searches
be based on probable cause. In the 1990 case of Michigan Dept. of State
Police v. Sitz, the Supreme Court determined that properly conducted
sobriety checkpoints are constitutional. However, some states have
determined that such checkpoints that have been allowed by the
Court in fact violate their state constitutions and have banned them.
148
UNIT
2
Criminal Law and Juvenile Justice
Police Searches
Without Individualized Suspicion
Each of the cases below deals with the policy
of allowing the government to conduct searches
that are not based on individualized suspicion
of criminal wrongdoing. Analyze the facts carefully. Balance the individual’s interest in privacy
against the government’s justification for conducting the searches. Then decide whether
or not the U.S. Supreme Court should allow
each search.
a. In early 1986, the Michigan Department of
State Police established a sobriety checkpoint
pilot program. All vehicles passing through a
checkpoint would be stopped and their drivers
briefly examined for signs of intoxication. If
an officer detected any signs of intoxication,
the driver would have his or her driver’s
license and car registration checked. If warranted, the officer could decide to conduct
further sobriety tests. Should the field tests
and the officer’s observations suggest that
the driver was intoxicated, an arrest would be
made. All other drivers would be permitted to
resume their journey immediately.
The program was carried out on only one
night. During the hour-and-fifteen-minute
duration of the checkpoint’s operation, 126
vehicles passed through the checkpoint, with
an average delay of approximately 25 seconds
per vehicle. Two drivers were detained for
field sobriety testing, and one of the two was
arrested for driving under the influence of
alcohol. A third driver who drove through
without stopping was pulled over by an officer in an observation vehicle and arrested for
driving under the influence. Before any further checkpoints could be carried out, several
drivers filed a lawsuit claiming that the checkpoints created an unreasonable seizure of
CHAPTER
A sobriety checkpoint
their vehicles in violation of their Fourth
Amendment rights.
b. In August 1998, Indianapolis began to operate checkpoints in an effort to catch drug
traffickers. Between August and November,
the city conducted six checkpoints and
stopped a total of 1,161 vehicles. At the
checkpoint, police would stop a group of cars
at random and inform the drivers that they
were being detained briefly. One officer would
ask the driver for license and registration information and check for evidence of the driver’s
impairment. Another officer would conduct a
plain view search of the inside of the vehicle
from outside, while a trained dog would sniff
around the outside of the car for drugs.
Unless this procedure produced evidence of
probable cause, the drivers were able to leave,
typically within five minutes. These stops
resulted in 104 arrests, about half of which
were for drug offenses. Several drivers who
were detained sued the city for violation of
their Fourth Amendment rights.
12
Criminal Justice Process: The Investigation
149
Racial profiling is a controversial
issue. When is it appropriate for a
police officer to use race in deciding
whom to stop?
150
UNIT
2
Racial Profiling in Police Investigations
Racial profiling is the inappropriate use of race as a factor in
identifying people who may break or have broken the law. Profiling
can take the form of inappropriate police action based on ethnicity,
national origin, or religion as well as race. Profiling occurs when, for
example, an airport security guard selects an “Arab-looking” person to
be searched solely because of his or her appearance. Critics of racial
profiling, including civil rights advocates and some police professional organizations, say that it violates the people’s constitutional
right to equal protection before the law as well as the presumption of
innocence. They also say it is an ineffective law enforcement tactic, it
reinforces racial stereotypes in society, and it creates negative relations between police and citizens.
The general rule is that it is inappropriate for an officer to stop a
person solely because of his or her race, ethnicity, national origin, or
religion. However, in some situations officers may appropriately consider these factors among others in deciding whom to stop. For example, if an eyewitness to a robbery describes the robber as an African
American man, a police officer may use race as a factor in deciding to
stop an African American man that she sees running from the immediate vicinity of the crime.
Criminal Law and Juvenile Justice
What Should Be Done About Racial Profiling?
A
committee of state legislators is meeting to discuss solutions to the issue
of racial profiling. A study by the state
government shows that African American
drivers are 35 percent more likely to be
stopped and searched by police than are
drivers of other races. A survey of people
who have been pulled over in the state
shows that a majority of people felt that
they were stopped for legitimate reasons.
However, one in three African Americans
and one in four Latinos felt they had been
unfairly stopped. Many complained of
abusive treatment by police.
Assume that you are a state legislator on
the committee trying to solve these problems.
Read the following excerpts from proposals
offered by committee members.
Gomez: The problem is that police are not
used to dealing with people from other cultures and have stereotypes of people of other
races. All police should receive training on
diversity and how to be culturally sensitive.
Wu: This practice has gone on for so long
because people are not aware of their rights.
When people are stopped, they should immediately be told why and be given a card that
lists their rights along with a business card
listing the name and contact information of
the officer.
Letaliano: Police officers are not being
disciplined for their inappropriate behavior
because the police chiefs are unaware of what
is going on. We need to collect data regularly
to make police officers more aware of why
they are really stopping people and to keep
them accountable to the public. Each time a
driver is stopped, the officer should be
required to fill out a form detailing the time
and date, driver’s age, probable race, gender,
and the reason for stopping the person.
Reynolds: The U.S. Constitution and state
laws already prohibit searches not based on
probable cause. The police department
already has internal complaint procedures
that people can follow if they feel they were
stopped because of their race. This is enough
to protect citizens. To do more could make
the police reluctant to stop people who might
be criminals.
Al-Aziz: It’s too hard for citizens to prove
that they were stopped illegally. All stops by
police should be videotaped so we can see
how the police treat the suspect and then
take disciplinary action against officers who
act improperly.
Debouche: We can’t rely only on laws or
the police department to solve the problem.
The answer is to have a board made up of
ordinary citizens that hears complaints and
has the power to take disciplinary action
against officers who act inappropriately.
Problem 12.8
a. Which of these proposals seems most likely
to help address the issue as you see it? Give
your reasons.
b. Invite members of your community to participate in this activity. Be sure that representatives from both law enforcement and a
group concerned about racial profiling are
invited. Is there evidence that racial profiling
is a problem in your community? If so, what
is the evidence? What can be done to deal
with the problem? If it is not a problem
where you live, what measures can be taken
to keep it from becoming a problem?
Problem 12.9
Determine whether profiling was used in making each of the following
decisions. Give your reasons.
a. Two African American men are driving over the speed limit on a highway
where police know drugs are being transported to a part of the city with
a large African American population. A police officer stops them for
speeding and then conducts a complete search of their car, including
their trunk, to look for drugs. They do not find any drugs.
b. After a terrorist attack, the government decides to use more telephone
wiretaps to gather information in communities that have mosques.
c. A man reports overhearing two Spanish-speaking men in a coffee shop
planning to rob a specific jewelry store the next day. The witness could
not see the men’s faces and does not know their names. The next day
the police go to the store and question two “Latino-looking” men who
are sitting in a car outside.
d. A woman entering the United States holds a passport from a country
with which the United States was recently at war. A customs agent
detains her for questioning.
Interrogations and Confessions
After an arrest is made, it is standard police practice to question,
or interrogate, the accused. These interrogations often result in
confessions or admissions of guilt. The accused’s confessions or
admissions are later used as evidence at trial.
No person . . . shall be
Balanced against the police’s need to question suspects are
compelled in any criminal
the constitutional rights of people accused of a crime. The
case to be a witness against
Fifth Amendment to the U.S. Constitution provides citihimself, nor be deprived of life,
zens with a protection against self-incrimination. This
liberty, or property, without
means that a suspect has a right to remain silent and candue process of law.
not be forced to testify against himself or herself at trial.
This protection rests on a basic legal principle: the
— Fifth Amendment to
the U.S. Constitution
government bears the burden of proof. Suspects are not
obliged to help the government prove they committed a
In all criminal prosecutions, the
crime or to testify at their own trial. Under the Sixth
accused shall . . . have the AssisAmendment, a person accused of a crime has the right to
tance of Counsel for his defence.
the assistance of an attorney.
The U.S. Supreme Court has held that a confession is not
— Sixth Amendment to
admissible as evidence if it is not voluntary and trustworthy.
the U.S. Constitution
This means that using physical force, torture, threats, or other
techniques that could force an innocent person to confess is prohibited. In the case of Escobedo v. Illinois, the Supreme Court said that even
a voluntary confession is inadmissible as evidence if it is obtained
after the defendant’s request to talk with an attorney has been denied.
The Court reasoned that the presence of Escobedo’s attorney could
have helped him avoid self-incrimination.
152
UNIT
2
Criminal Law and Juvenile Justice
Miranda warnings are read to
suspects in custody if the
police want to interrogate
them. How has the Miranda rule
changed in recent years?
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C12
Although some defendants might ask for an attorney, others might
not be aware of or understand their right to remain silent or their right
to have a lawyer present during questioning. In 1966, the Supreme
Court was presented with such a situation in the case of Miranda v.
Arizona. In its decision, the Court ruled that Ernesto Miranda’s confession could not be used at trial because officers had obtained it
without informing Miranda of his right to a lawyer and his right to
remain silent. As a result of this case, police are now required to
inform people taken into custody of the so-called Miranda rights
before questioning begins.
Suspects sometimes complain that they were not read their Miranda
rights and that the entire case should therefore be dropped and
charges dismissed. Failure to give Miranda warnings, however, does
not affect the validity of an arrest. The police have to give Miranda
warnings only if they want to use statements from the accused at the
trial. In fact, in his second trial, even though the court could not use
his confession as evidence against him, Miranda was convicted based
on other evidence.
The controversial Miranda case illustrates the delicate balance
between the protection guaranteed to the accused and the protection
from crime provided to society. This balance is constantly changing,
and the effect of the case has been altered by more recent cases.
CHAPTER
12
Visit the Landmark
Supreme Court Cases Web
site at landmarkcases.org
for information and
activities about Miranda v.
Arizona.
Criminal Justice Process: The Investigation
153
The Juvenile and
Miranda Warnings
In 1995, teenagers Michael Alvarado and
Paul Soto attempted to steal a truck in a
shopping mall parking lot in Santa Fe Springs,
California. Alvarado approached the passenger side door of the truck, and Soto, holding
a .357 Magnum pistol, approached the driver.
The driver refused to give Soto the keys, so
Soto shot and killed him. Alvarado then
helped Soto hide the gun.
Both Alvarado and Soto were convicted of
second-degree murder and robbery. Alvarado
was convicted in large part because of incriminating statements he made about his involvement in the shooting during a two-hour
interview with a police detective about a
month after the murder.
At the time of the interview, Alvarado was a
17-year-old high school student. The detective
contacted Alvarado’s mother, who agreed to
bring him to the police station for questioning. When Alvarado arrived with his parents,
the detective denied the parents’ request to
remain with their son during the interview.
While they waited in the lobby, Alvarado was
questioned alone. During the two-hour session, the detective twice asked Alvarado if he
wanted to take a break. Alvarado admitted to
his role in the killing. At the end of the interview he went home. Alvarado was never
advised that he had a right to remain silent, to
consult a lawyer prior to answering questions,
or to leave the police station.
Problem 12.10
a. What are the strongest arguments that
Alvarado should have been given Miranda
warnings at the beginning of the questioning by the detective?
b. What are the strongest arguments that
there was no need to give Alvarado Miranda
warnings in these circumstances?
c. If you were a judge on an appeals court
hearing this case, how would you analyze
the issue of whether Alvarado was in custody and being interrogated? Should his
age and experience be a factor? Explain.
d. Should Alvarado have done anything differently? Should the detective have done anything differently?
In one case, the Supreme Court created a public safety exception
to the Miranda rule. In this case, a police officer who was arresting a
rape suspect in a grocery store asked the suspect where his gun was
before advising him of his rights. The suspect then pointed to a
nearby grocery counter, where the gun was found. The Court held
that police may ask questions related to public safety before advising
suspects of their rights. The Court has also limited the impact of the
Miranda rule by strictly requiring that the person be in a condition
of custodial interrogation before the warnings are needed.
Custodial interrogation means that the person is in custody (not
free to leave) and is being interrogated (questioned) by the police.
Remember that defense counsel will ask the judge before trial to
exclude the results of an illegal search. Similarly, defense counsel
will ask the judge at a pretrial hearing to exclude any statement
given by the defendant in violation of the Miranda rule.
154
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2
Criminal Law and Juvenile Justice